Foley, Ex Parte Albert Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: October 12, 2011
• Docket: AP-76,659
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,659 EX PARTE ALBERT FOLEY, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 16682 IN THE 329^TH DISTRICT COURT

FROM WHARTON COUNTY

Per curiam.

O P I N I O N

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of driving while intoxicated and sentenced to twenty-five years' imprisonment. The Thirteenth Court of Appeals affirmed his conviction. Foley v. State, 327 S.W.3d 907 (Tex. App.-Corpus Christi 2010).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed and that he had a right to file a pro se petition for discretionary review. We remanded this application to the trial court for findings of fact and conclusions of law.

Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court has entered findings of fact and conclusions of law that appellate counsel failed to timely notify Applicant of his right to file a pro se petition for discretionary review. The trial court recommends that relief be granted. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). We find, therefore, that Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review of the judgment of the Thirteenth Court of Appeals in Cause No. 13-09-00473-CR that affirmed his conviction in Case No. 16682 from the 329^th Judicial District Court of Wharton County. Applicant shall file his petition for discretionary review with this Court within 30 days of the date on which this Court's mandate issues.

Applicant's remaining claims are dismissed. Ex Parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

Delivered: October 12, 2011

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